Judge: The Honourable Mr. Justice Armstrong
Decision Release Date: September 23, 2024

Kelly Ennis brought a class action lawsuit against Johnson & Johnson, its consumer companies, and subsidiaries under the Class Proceedings Act, alleging that the company’s talc-based product, Johnson’s® Baby Powder, contributed to the development of ovarian cancer in users who applied it perineally. Ms. Ennis, who had used Baby Powder in the genital region for most of her teenage and adult life, was diagnosed with epithelial ovarian cancer in 2021.

The certification hearing faced numerous challenges. In a November 2020 decision, the court had initially allowed certification but required the plaintiff to provide additional information on the methodology to prove general causation. This was necessary to establish a plausible way to link the use of Baby Powder with the development of ovarian cancer on a class-wide basis. The plaintiff then presented an expert report from Dr. Daniel W. Cramer, a clinical epidemiologist, who opined that there was a statistically significant association between perineal Baby Powder use and epithelial ovarian cancer.

Justice Armstrong considered whether this evidence met the standard required for certification. Dr. Cramer’s methodology highlighted various risk factors, including menopausal status and hormone therapy, and compared these against the average increased risk presented by Baby Powder use. He suggested that the carcinogenic pathway of talc was similar to that of asbestos, causing chronic inflammation and DNA damage. Despite the defendants’ experts countering that ovarian cancer consists of different types with distinct causes and characteristics, the court found Dr. Cramer’s methodology to be a realistic means to test general causation.

Although the defendants argued that individual factors like genetics and lifestyle would still dominate any causation analysis, the court concluded that the class could be certified for those who used Baby Powder perineally and were subsequently diagnosed with epithelial ovarian cancer. However, the court also required the class definition to exclude certain individuals, such as those diagnosed with ovarian cancers not linked to Baby Powder or those residing in Québec, given an ongoing similar action in that province.

This decision allowed the class action to move forward, with the court satisfied that there was a plausible methodology to prove a general causation link between Baby Powder use and epithelial ovarian cancer. It did so acknowledging that, while individual trials might still be needed to address specific causation for each claimant, a class action would promote judicial economy and access to justice for the affected individuals.

Please note this decision was merely the certification of a class action proceeding, but was not a final decision on the merits of the action.

This brief summary is provided for informational purposes only, and should not be relied-upon for any legal purpose.